Parks in Plats Causing Problems

This office gets calls all the time about the legal rights or prohibitions involving platted parks in subdivisions. Unfortunately, there are no easy answers. A new Court of Appeals decision highlights the issue.

In Virginia Park Subdivision Association v Hair, the park-side lot owners had a dispute with the back-lot owners in the small subdivision on Walled Lake in Oakland County. The owners of Lots 12, 13, 14, and 15 claimed that the rest of subdivision could not use the park land to install docks and moor boats. The rest of the subdivision claimed equal rights.

The 1918 plat read that  the “park as shown on said plat [is] hereby dedicated to the use of lot owners only.” It explains nothing more. Being a nearly 100 years old plat, the original creators of the subdivision are long since deceased.

This vague language and the age of most up-north and lake-side plats is extremely common in neighborhood disputes like these.

Even more unique, no parcel is adjacent to the water’s edge, which is traditionally the way for determining who has riparian or littoral rights. See 2000 Baum Family Trust v Babel, 488 Mich 136, 143 (2010) (owners of riparian land hold certain exclusive rights, including “the right to erect and
maintain docks, as well as to permanently anchor boats off the shore.”); see also  Morse v Colitti, 896 NW2d 15, 22 (Mich Ct App 2016). (Full disclosure, this law office represents Mr. and Mrs. Colitti).

Therein lies the rub.

The trial court, in a spectacularly surprising decision, held that none of the lot owners have riparian rights. An appeal ensued.

From my point of view, if there had been no dedication, then the case would have been an easy one–the trial court would have been right in that none of the lots owners (unless they had a deed to the park) owned the property.

But it is never that easy.

The three judge panel correctly explained that “the interposition of a fee title between upland and water (i.e. the existence of someone else’s land) destroys riparian rights, or rather transfers them to the interposing owner.” However, Michigan law has created a slew of unclear exceptions to this rule, including for highways or a walking path. This is because attorneys for property owners closer to the water have tried to create more exceptions. In this case, there is a park.

The law on the interposing “park” is less than clear. The problem currently is that court cases keep going in different directions. Sometimes a panel of judges find that the existence of a park is similar to a walkway or highway, sometimes they do not.

The reason, I believe, this legal madness continues is because the courts never focus on the key issue–who owns the land abutting the lake. Attorneys for the lots owners closer to, but not on, the water conveniently “forget” that key point. Riparian rights run to the owner of the waterfront property, which can be shared with a whole neighborhood via a dedication or an easement. Moreover, prescriptive rights can come into play too.

In this case, the panel decided not to decide and sent it back for more argument in the trial court. Cases like these are important because the trial judge’s decision could literally destroy tens or hundreds of thousands of dollars of property value for the backlotters.

My advice to you (if you are in these kinds of legal fights) is do not hire a general practice attorney; get a riparian rights attorney who specializes in the nuanced understanding of Michigan water law.

Restrictive Covenants Can Be Strictly (and Harshly) Enforced

Many properties in Michigan, whether on lakes or in cities, are covered by restrictive covenants. Restrictive covenants, sometimes called deed restrictions, are private-party agreements that run with or ‘go with’ the land and control any number of uses and prohibitions for the use of property. These property restrictions are usually created by a subdivision developer or by a vote of a group of property owners.

Michigan law has recognized that these restrictions are usually valid, valuable, and exist under the the freedom to contract. The Supreme Court has explained:

Such contracts [i.e. restrictive covenants] allow the parties to preserve desired aesthetic or other characteristics in a neighborhood, which the parties may consider valuable for raising a family, conserving monetary value, or other reasons particular to the parties.

However, not all restrictions are enforceable. Certain prohibitions on the basis of race, religion, or other protected class are legally unenforceable.

An interesting case is making its way through the court system which placed a quota on the number of Catholic owners of property of a summer cottage association just outside of Petoskey, Michigan. Many of these cases are defended on religious freedom or free association rights under the First Amendment with varying success.

However, basic issues like building types or structural set backs are the usual issues the parties disagree about, including how or to what extend these restrictions are to be enforced.

For example, in Thiel v Goyings, the Goyings installed a house that comprised of three modules manufactured offsite, brought to the subdivision lot on a trailer, and assembled onsite. A restrictive covenant imposed on the subdivision provided that:

No manufactured homes whether classified as a mobile home, modular home, or otherwise, and no prefabricated homes shall be permitted on any Parcel in the Premises; regardless of which building codes are applicable to said homes.

The Goyings defended arguing that their home was a “systems built” home and was not a manufactured home. They also argued that other restrictions where never previously enforced. After a trial, the circuit court concluded that the house was “sufficiently constructed, valued, and congenial as to allow it to remain.” Trial courts often times take great steps to try to avoid what is commonly viewed as an unjust result of removal or destruction of the offending structure.

On appeal, the Court of Appeals reversed and explained it “acknowledges that these types of cases are difficult and that the trial court strived to find an equitable solution,” but the systems-built home was in clear violation of the unambiguous restrictive covenant.

In uncharacteristically direct decision for an appeals court, it ordered that the trial court had no choice but to order the removal of the house–an expensive and drastic remedy.

According to the Court of Appeals decision:

Defendants’ labored attempt to argue that a modular home is just as good as a stick built on site home is of no consequence in the face of the plain reading of the restrictive covenant. The construction and value of the home is not at issue and, in fact, defendants’ tactic in presenting numerous witnesses who testified that defendants’ home was high-quality and that any assumption to the contrary was unfounded supports the basis for the restrictive covenant. Justified or not, there is a perception that modular homes are of lesser quality and will bring -7- down the value of the neighborhood. The restrictive covenant was drafted for that precise reason. The trial court was not at liberty to decide whether it agreed with the covenant; it was required to enforce the restrictions as written.

The take away is clear: check for deed restrictions and/or restrictive covenants before purchasing property in a subdivision or summer resort association. Also check out the bylaws and regulations of any homeowners & property owners’ association which also might have some restrictive rules. Failure to do so can result in a drastic outcome–the destruction of your structure or home.

Can I Be Awarded Money Damages for Interference with an Easement

The decision to bring a lawsuit against a trespasser or neighbor is a competing question of strategy and goals. Does one seek money damages, an injunction, or both? The easier case, in a practical sense, is just to obtain a court order to halt a trespasser from his or her illegal acts. Moreover, seeking money damages for loss of the use of an easement has been difficult because there has been a question whether such a legal remedy even exists under Michigan law. That has now changed. Continue reading “Can I Be Awarded Money Damages for Interference with an Easement”

Deadlines via the Statute of Limitations Matter

When bringing suit, one of the common defenses property law attorneys (like the one at OLC) look for is known as the statute of limitations. It is also one of the most misunderstood aspects of property law, even for judges.

Most lawyers know that when filing a lawsuit, there are time limits on when to file. For contracts, it is six years from the breach. For personal injury, it is three years from the accident. For FOIA requests, it is 180 days. It all depends on the nature of the claims.

Under Michigan property law, the applicable statute of limitations depends on the nature of the claim and how the judge views the claim. The limitation runs from the date it “first accrues.” Continue reading “Deadlines via the Statute of Limitations Matter”

Michigan Wetlands Have Complicated Compliance Regulations

Michigan law protects property deemed a wetland. Wetlands are define to include “land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh.”

If property is part of a wetland, the owner is prohibited, without a permit, from depositing/placing fill materials; dredging or removing soil or minerals; maintaining any use or development; or draining surface water. “Fill material” is defined as “soil, rocks, sand, waste of any kind, or any other material that displaces soil or water or reduces water retention potential.” Continue reading “Michigan Wetlands Have Complicated Compliance Regulations”

Ditch the Co-Owner with a Partition Action

So the great idea of co-owning a recreational property seemed like a good idea at the time. Expenses can be shared. The property could be regularly used. Many hands make light work of a vacation home.

Then reality sets in.

Squabbles over taxes and electric bills fill the air. Passive-aggressive texts of what you were “supposed” to do that last time the property was visited. Hurt feelings and disproportionate expenses abound. You need to get out but the others do not want to sell or buy you out. What can you do?

File what is known as a partition action.

Under Michigan law, any person who has an estate-in-possession in the lands (except for rights of reversion or remainder) may seek to partition or divide the property co-owned by two or more owners.  Physical division of the jointly-held property is the preferred method of partition, but the court may also order sale and division of the proceeds when it concludes that an equitable physical division cannot be achieved.

If property owners own different percentages, the Court would normally divvy up the property in the respective proportions. However, where such a division results in an unfair amount, the court may award money payments to offset the difference.

In other words, if you want out, you can get out by filing a partition action. You don’t have to stay with the one you bought with.

Walking on the Wild Side Is Permissible and Not Prescriptive

In Michigan, prescriptive easements “arise” where a person merely uses, but does not possess, the land of another for a particular purpose without permission for 15 years. The legal fiction behind this claim is “founded on the supposition of a grant” of property rights because the applicable statute of limitations has run.

The legal claim of prescriptive easement is highly similar to an adverse possession claim. At its basics, Michigan law provides that when someone uses another’s land in the same manner for 15 or more years, the trespasser can claim that he or she now has a proper permission, i.e. a prescriptive easement.

However, a common overlooked exception to a claim of prescriptive easement is the “wild lands doctrine.”

When a 15+ year trespasser goes to court and claims to have a prescriptive easement, it must be proved 1.) the use was not based upon permission of the current landowner, 2.) the use was “hostile” to the owner. Hostility has a specialized legal definition, meaning to act contrary to the legal interests of the property owner.

A few early 1900 decisions of the Michigan Supreme Court recognizes, however,  the “general custom” of owners of “wild and unenclosed lands” implied providing ongoing permission for the public to pass over such land without hindrance.  In other words, the use for a way of passage of unenclosed vacant land not in use by the owner, or even mere possession of it, is not in itself hostile to the owner; a lack of hostility means a lack of successful prescriptive easement claim.

This is known as the wild lands doctrine. It has been successfully used to kill prescriptive easement claims.

Legal authority: Du Mez v Dykstra, 257 Mich 449 (1932); Menter v First Baptist Church, 159 Mich 21 (1909).